The U.S. Senate’s constitutional role in the appointment process
for federal judges empowers it to thwart presidential nominations to
the bench, including those nominated to the Supreme Court. More
than one president in our history has felt the stinging rejection of a
prospective member of the High Court.
Article II, section of the Constitution provides that the president
“shall nominate, and by and with the Advice and Consent of Senate,”
shall appoint “Judges of the supreme court.” The “appointment
power” is a shared power, jointly exercised by the president and the
Senate, and thus a vital cornerstone of the doctrine of checks and
balances.
At the outset of the founding, it was assumed by political actors
and commentators that the Senate would likely defer to the
president’s judgment unless there were clear reasons why a nominee
should be defeated. In Federalist No. 76, Alexander Hamilton
explained the Senate’s likely deference: “As their dissent might cast a
kind of stigma upon the individual rejected, and might have the
appearance of a reflection upon the judgment of the Chief magistrate,
it is not likely that their sanction would often be refused, where there
were not special and strong reasons for the refusal.” Justice Joseph
Story, one of the greatest scholars ever to hold a seat on the
Supreme Court, observed in his magisterial three volume
commentary on the Constitution: “The more common error (if there
shall be any) will be too great a facility to yield to the executive
wishes, as a means of personal, or popular failure.”
An initial disposition of deference to the president, like an initial
judgment on any other issue in life, however, does not necessarily
lead to an ultimate approval. The Senate, historically, has exercised a
vigorous review of the qualifications of presidential nominees to the
Supreme Court, which has led it to defeat roughly one out of every
five of the president’s choices. Close scrutiny of the qualifications,
skills, temperament, experience and expertise of a nominee who, if
approved by the Senate, will enjoy what is, for all intents and
purposes, a lifetime appointment.
How could it be otherwise? If members of the Senate behaved
like a rubber stamp, there would be no value in adding the Senate to
the appointment power, no expected benefit derived from the
wisdom, insights, values and judgment of a body whose advice and
consent to the president’s nomination power was viewed by the
framers of the Constitution as a huge improvement over the English
King’s sole authority to appoint people to judgeships. Senators, like
presidents, are expected to bring to bear their own independent
judgment of the nominees’ political, judicial and constitutional
philosophies, a duty particularly important when the balance of the
Supreme Court is at stake.
Senate consideration and occasional rejection of controversial
presidential nominees to the Court reflects politics and partisanship,
as well as the purported qualifications of the candidate. History
records a checkered record: some controversial nominees have been
ultimately approved after a bitter fight, while others were doomed,
seemingly from the start.
In 1916, President Woodrow Wilson nominated Louis Brandeis to
the Supreme Court. Although regarded as one of the nation’s very
best attorneys, Brandeis was controversial, not merely because he
was a leading progressive voice on issue of social justice but
because he was Jewish at a time when anti-semitism was pervasive.
His nomination was bitterly contested and lasted for four months
before he was confirmed by the Senate on a 47 to 22 vote. By all
accounts, Brandeis went on to become one of the most influential
members of the Supreme Court in American history.
Seven decades later, President Ronald Reagan nominated Robert
Bork, a prominent judge on the D.C. Circuit Court of appeals, a
former Yale law school scholar and professor, and an influential
conservative voice. President Reagan exalted Judge Bork’s personal
and political beliefs in nominating him to the Court, but told the
Senate that it should look only at Bork’s professional qualifications.
The Senate, controlled by Democrats, did not share Reagan’s double
standard and believed that the Senate, like the president, could take
account not only of Bork’s record, but also his personal and political
values. Bork’s defeat, by a vote of 58-42, clearly did reflect the
partisan politics and values of Democratic members of the Senate,
but also his lengthy resume of speeches and writings in which he
registered objections to landmark Supreme Court opinions that
expanded the rights and liberties of Americans.
Bork’s criticisms, for example, of Brown v. Board of Education, the
1954 decision in which the Court struck down segregation in public
schools, and his rejection of a constitutional right to privacy, as set
forth in the 1965 case of Griswold v. Connecticut, provided his critics
with more than sufficient ammunition to defeat his nomination to the
Court. Bork, himself, later admitted that his long list of controversial
writings meant that, unlike judicial nominees since, he could not avoid
questions about his judicial and constitutional philosophy.
Judge Bork’s defeat was not entirely attributable to his conservative
values. Anthony Kennedy, nominated to the Supreme Court vacancy
after the rejection of Bork, was approved unanimously, 97-0.
Kennedy was a well-known conservative, but did not have Bork’s long
record of scholarly writings, which could be picked apart by the
Senate.
The Senate’s constitutional duty to appraise the qualifications of
Supreme Court nominees was an invaluable addition to the
appointment power. While its judgment is always subject to criticism,
as is the president’s in nominating men and women to the Court,
history will record that the advice and consent clause has served the
nation well.